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United States v. Walton

United States Court of Appeals, Ninth Circuit

February 1, 2018

United States of America, Plaintiff-Appellee,
v.
Donnie Lee Walton, Defendant-Appellant.

          Argued and Submitted January 8, 2018 Pasadena, California

         Appeal from the United States District Court for the Central District of California No. 2:14-cr-00537-SVW-1, Stephen V. Wilson, District Judge, Presiding

          Jonathan D. Libby (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

          L. Ashley Aull (argued), Chief; Michael Anthony Brown, Assistant United States Attorney; Sandra R. Brown, Acting United States Attorney; Criminal Appeals Section, United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff, [*] Senior District Judge.

         SUMMARY [**]

         Criminal Law

         The panel vacated a sentence and remanded for resentencing in a case in which the district court imposed an enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA), on the ground that the defendant had four prior convictions for violent felonies.

         The panel held that first-degree robbery under Alabama Criminal Code § 13A-8-41 is not a violent felony under ACCA because the force required to support a conviction for third-degree robbery under Alabama law is not sufficiently violent to render that crime a violent felony under ACCA, and the Government has waived any argument that the statute is divisible.

         The panel held that United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (holding that California robbery is not a violent felony under ACCA's force clause because it can be committed where force is only negligently used and because the statute is indivisible), is dispositive as far as defendant's conviction for second-degree robbery under Calif. Penal Code § 211 is concerned.

         Because two of the defendant's four prior convictions are not violent felonies under ACCA's force clause, the panel concluded that the defendant should not have been subject to ACCA's fifteen-year mandatory minimum sentence, which requires at least three previous convictions of violent felonies.

          OPINION

          RAKOFF, Senior District Judge

         Defendant-Appellant Donnie Lee Walton challenges the district court's imposition of a sentencing enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). ACCA imposes a mandatory minimum sentence of fifteen years of imprisonment on a person who both violates Section 922(g) and has three previous convictions for either a "serious drug offense, " or a "violent felony, " or some combination of the two. Id.

         When Walton pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g), he had previously been convicted of (1) assault with a deadly weapon, in violation of California Penal Code § 245(a)(1); (2) second-degree robbery, in violation of California Penal Code § 211; (3) first-degree robbery in violation of Alabama Criminal Code § 13A-8-41; and (4) attempted murder, in violation of Alabama Criminal Code ...


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